When considering Title VII complaint statistics, it is usually assumed that race discrimination or sexual harassment claims would be the most frequent charge. Since 2009, however, a different claim became the statistical leader, and has remained at the top ever since. That claim is retaliation.
Federal law, as well as many state laws, prohibit employers from taking an adverse action against an employee because the employee opposed an unlawful employment practice or policy, or otherwise engaged in protected activity. The EEOC explains it this way: “An employer may not fire, demote, harass or otherwise ‘retaliate’ against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, and disability, as well as wage differences between men and women performing substantially equal work, also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding.” A retaliation claimant must establish that 1) he or she engaged in protected activity, such as testifying regarding discrimination or opposing an unlawful activity; 2) there was an adverse employment action (e.g. termination, denial of promotion or raise); and 3) there is some nexus between the protected activity and the employment action claimed to be adverse.
This definition, and the standards for such a claim, have not changed, so what explains the fact that retaliation claims are so extensive now. The primary explanation is that in 2006, the U.S. Supreme Court lowered the standard that individuals must meet to win a retaliation claim under federal anti-discrimination laws. In Burlington Northern & Santa Fe Railroad v. White, the Court determined that to assert a retaliation claim, an employee need only show that the employer took an action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Additionally, the standard for proving a causal connection is not high. For example, chronology or suspicious timing between the protected activity and the adverse employment action may be sufficient for a claim to survive in court. Further expansion resulted from the Court’s decision in Thompson v. North American Stainless. In that case, Eric Thompson was the fiancée on an employee who complained about discrimination. After the complaint, Thompson who worked for the same employer, and was terminated. The Court held that even though Thompson had not engaged in any protected activity, his status as the complainant’s fiancée’s made him an “aggrieved person” who falls within the “zone of interest” that is protected by Title VII. Moreover, the Supreme Court recognized that this type of indirect retaliation could dissuade a reasonable person from filing a charge. Thus, the universe of possible claimants is larger than those who are actually pursuing discrimination claims.
An additional explanation is recognition by claimants and their lawyers that this is a claim that can be pursued even if the underlying discrimination claim or related protected activity is found to be without merit. The claim can be, in some circumstances, a second bite at the apple. For example, retaliation charges can arise even when an initial workplace misconduct claim is raised, investigated, and rejected by the employer, but the complaining worker is subsequently disciplined for an unrelated issue. In such circumstances, the employee can argue that the discipline was retaliation for previously bringing the rejected charge. As a practical matter, in terms of jury appeal, it is far easier for a plaintiff to convince a jury that a supervisor changed the way he or she treated a subordinate after that employee accused the supervisor of discrimination, than it is to prove the supervisor actually discriminated. Even if the charge had no merit it is an easy-to-understand argument to assert that the supervisor was obviously upset at being wrongfully accused and therefore probably retaliated.
There is no reason to believe this trend will change. Employers are well advised to ensure that strong ant-retaliation measures are implemented and consistently enforced.